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The "Drunkenness" Defence & Sexual Assault Law

ARCHIVED ARTICLE (HISTORICAL)

July 2009

Canadian law has struggled with the degree of responsibility that can be attributed to someone who is drunk when he or she commits a crime.

Canadian law is hesitant to convict a person of a criminal act unless that person intended to commit the act. Typically, to secure a conviction a court must be convinced that a person committed a criminal act and intended to commit that act. The defence of drunkenness is used to argue that the person did not intend to commit the act and therefore should not be convicted of criminal behaviour. The theory is that a person who is so drunk they cannot form the intention to act should not be convicted. This is because of the importance the Canadian legal system ascribes to intent in the criminal law context.

Canadian law waivers on the application of this principle to serious criminal offences. This article traces the recent history of the “drunkenness defence” as it has been applied to sexual assault.

Although slightly unclear at the present time, the law seems to suggest that self-induced extreme intoxication is available as a defence to a charge of sexual assault. The state of the law of drunkenness as a defence to sexual assault reflects in part the failure of the criminal justice system to respond appropriately to violence against women.

R. v. Daviault

In 1994, the Supreme Court of Canada rendered an extremely controversial decision that prompted much public outcry and led many women's groups to question the court's approach. In R. v. Daviault, the majority of the court held that it would be unconstitutional to convict someone of sexual assault when they had become so drunk that they 'blacked out' and were unaware and/or not in control of their actions.

Daviault (the defendant) was a man who, while drunk, sexually assaulted a 69-year-old women who was confined to a wheelchair. Six members of Canada's highest court ruled that it would be against the principles of fundamental justice to convict this man after an expert witness called by the defence testified that his blood alcohol level likely rendered him an automaton – someone who was not capable of forming intent.

Prior to Daviault, the common law rule set out in R. v. Leary prevented the use of voluntary intoxication as a defence for general intent offences (such as sexual assault). The enactment of the Charter brought this common law rule under constitutional scrutiny.

The defence in Daviault argued successfully at trial and at the Supreme Court that there could not be a total ban on using the drunkenness defence to defend against charges that a person committed a “general intent” offence. (“General intent” offences are different from “specific intent” offences. Specific intent offences require the accused to intend to commit a particular act and intend the consequences of that act. General intent offences only require that the accused intend the act. Sexual assault is a general intent offence – if the accused intended to touch a person in a sexual manner without that person’s consent, then the accused intended to commit a sexual assault.)

The Supreme Court held that a complete prohibition on the drunkenness defence for general intent offences was contrary to s.7 of the Charter, which guarantees "the right to life, liberty and security of person except in accordance with principles of fundamental justice".

In reaching this conclusion, the court relied on the long accepted principle of fundamental justice that the morally innocent should not be punished. In law, this means that a crime must be committed voluntarily and it must involve some minimal mental element. The minority opinion suggested that the act of voluntarily becoming intoxicated to the extent that one threatens of interferes with the safety other members of the public could be the mental element or blameworthiness required by the criminal law.

The majority did not accept this argument. The majority attempted to limit the availability of the defence in three ways. First, the level of intoxication must be so extreme that it is akin to automatism or insanity. Second, the onus is on the accused to prove that this level of intoxication existed on a balance of probabilities. Third, the accused needs corroborating expert evidence to successfully make out the defence.

The response to R. v. Daviault

Feminist groups did not believe that the limits placed on the defence of drunkenness in R. v. Daviault were adequate. They worried that the availability of the defence would make it even harder to convince women to come forward and report sexual assault. The decision (which was supported even by Justice L'Heureux-Dube, who had in the past rigorously worked to dispel rape myths prevalent in the justice system) sent the message that the system would acquit men who became drunk and assaulted women.

Feminists argued that the decision failed to consider the context and ignored the societal interest in condemning sexual assault, as well as violence against women generally. Feminists argued that the Supreme Court focused solely on the rights of individual accused persons without regard to the equality rights guaranteed to women under s.15 and the right to life, liberty and security of the person guaranteed to women by s.7 of the Charter.

Daviault was also questioned on other grounds. Some suggested that the science underlying the decision was faulty and questioned whether alcohol could in fact induce automatism. Others felt that the decision was problematic as it put an intoxicated offender in a better position than a sober offender.

Government Reaction

In response to the outcry following R. v. Daviault, the federal government enacted s.33.1 of the Criminal Code, which essentially overturned Daviault. Section 33.1 reads:

33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

Section 33.1 attempted to undo important elements of Daviault. In particular, the bill that introduced s.33.1 made critical connections between violence against women, women’s equality, and alcohol abuse. The preamble to the bill stated in part:

WHEREAS the Parliament of Canada is gravely concerned about the incidence of violence in Canadian society;

WHEREAS the Parliament of Canada recognizes that violence has a particularly disadvantaging impact on the equal participation of women and children in society and on the rights of women and children to security of the person and to the equal protection and benefit of the law as guaranteed by sections 7, 15 and 28 of the Canadian Charter of Rights and Freedoms;

WHEREAS the Parliament of Canada recognizes that there is a close association between violence and intoxication and is concerned that self-induced intoxication may be used socially and legally to excuse violence, particularly violence against women and children;

WHEREAS the Parliament of Canada shares with Canadians the moral view that people who, while in a state of self-induced intoxication, violate the physical integrity of others are blameworthy in relation to their harmful conduct and should be held criminally accountable for it;

WHEREAS the Parliament of Canada desires to promote and help to ensure the full protection of the rights guaranteed under sections 7, 11, 15 and 28 of the Canadian Charter of Rights and Freedoms for all Canadians, including those who are or may be victims of violence …

The government must have known when it passed s.33.1 that its constitutionality would be challenged and so it has been.

Response to S.33.1

As one would expect, the amendments to the Criminal Code preventing the use of the intoxication defence with respect to assaults, including sexual assault, have been challenged in court as being contrary to the Charter.

In a few cases, courts have found or speculated that s.33.1 is likely unconstitutional. However, to date, these findings and speculations have only been made by trial courts or in obiter at the appeal level (See R. v. Brenton, R. v. Jensen and R. v. Dunn). Without a judgment on the constitutionality of s.33.1 from the Supreme Court of Canada, lower courts may follow the decisions of their peers and hold that s.33.1 is unconstitutional, but they are not required to. While lower courts are not strictly bound to follow the decision of other lower courts, if a trend is established, it will continue until a higher court decides the issue. (In Ontario, R. v. Cedono, 2005 ONCJ 91 clearly states that s.33.1 is unconstitutional.)

As a result of these cases, s.33.1 is on very shaky grounds. However, there has been no outcry as there was after the Supreme Court's decision in Daviault.

Directions for the Future

Given the questionable state of s.33.1, it currently does not afford much protection for women. For this reason, potential alternatives to s.33.1 need to be explored.

One possible solution was suggested in the majority ruling of Daviault. The Supreme Court mentioned that becoming voluntarily intoxicated was not itself a criminal offence. The federal government could create a new criminal offence which prohibits one from becoming intoxicated and threatening or injuring others. If such a law was enacted, someone like Daviault could be charged with this new offence and convicted even if they were acquitted of sexual assault on the basis of extreme intoxication. While this would provide some justice, this kind of offence would not carry the same stigma as a sexual assault conviction.

Conclusion

Although the Charter has prompted many positive changes for women, in the context of criminal law, fair trial rights usually supersede women's s.15(1) equality rights. This tendency is another reminder of the complex relationship between women's equality and the criminal law, and the need to integrate our understanding of the two. How can a trial that violates the equality rights of women be said to be fair?